Al-Ahram: A Diwan of contemporary life (604)
Judging by the law
When it assumed power in 1930 the government of Prime Minister Ismail Sidqi launched a massive suppression of civil liberties, which included the judiciary. The succeeding Ali Maher government began the clean-up, which would incorporate judicial reforms. Professor Yunan Labib Rizk covers the battle for judicial autonomy
Ali Maher Pasha
On 11 April 1936 Al-Ahram 's banner headline blazoned, "The autonomy of the judiciary: the official documents. The most momentous act of the present era!" The official documents in question were two acts of law and a clarifying appendix, the full texts of which appeared in that day's paper. Two days later, readers were given a summary of seven principles contained in the statutes:
"1. Judges appointed to the national courts must meet the following minimum age requirements: 28 upon initial appointment to serve at the preliminary court level, 40 to serve in the Court of Appeals and 45 to serve in the Court of Cassations. Candidates must also have obtained a licentiate in law prior to appointment and they must be of sound character, their honour untainted by criminal record or disciplinary measures.
"2. In order to qualify for promotion to judge at the second grade, candidates must pass an examination, eligibility to the sitting of which is restricted to deputy prosecutors who have served a minimum of four years, leggiest who have served in their fields of specialisation for a minimum of seven years and barristers accepted before the Court of Appeals for at least five years.
"3. At least two-thirds of the available positions at second grade shall be filled by deputy prosecutors who have passed the examination.
"4. Promotion to chief magistrate of a preliminary court or judge at first grade in the national court system shall be based on qualifications. In the event that candidates are of equal qualifications, seniority shall prevail.
"5. Decisions regarding promotions in preliminary and appellate courts, new appointments and delegations, and dismissals must be taken in consultation with the Supreme Judicial Council, which is chaired by the minister of justice and which consists of the chief justice of the Court of Cassations, two counsellors from this court, the deputy minister of justice, the public prosecutor, the chief justice of the Court of Appeals and two counsellors from this court.
"6. The Ministers Council retains the right to differ in its opinion from the Supreme Judicial Council on appointments, promotions and delegations.
"7. Appointees as assistant public prosecutors must have passed the examination for this post."
Al-Ahram would not have been pleased by this law, having waged a campaign against it in which it solicited the contributions of numerous experts. Not surprisingly, therefore, its editorial following the promulgation of the law was quite critical. The author, Abdullah Hussein, an Al-Ahram staff writer and a lawyer, saw no reason to justify the raising of the minimum age requirement from 25 to 28 for admission into the judiciary at the preliminary court level and from 28 to 40 to qualify as an appellate justice.
Hussein objected, secondly, to the minimum two-thirds quota of deputy prosecutors at the grade-two level. As long as promotion to this level was based on a qualifying examination, there was no reason for such a quota. "There should be no discrimination, especially as the new law has no discriminatory criterion of this sort for admission into the judiciary corps," Hussein wrote.
In all events, he believed that the new law should not have retained the two-grade system at the preliminary court level to begin with. Nor did he agree with the system of promoting judges to deputy and chief justice levels. "In our opinion, the occupants of these posts should be elected by the general assembly of each court."
What particularly rankled him, however, was the article pertaining to the right of the minister of justice to issue a decision on appointments contrary to the opinion of the Supreme Judicial Council. Even if the minister was obliged under the law to furnish a detailed justification of his refusal to accept the council's opinion, this provision constituted an infringement of the principle of judicial autonomy. He was further dismayed by the failure of legislators to establish guarantees protecting preliminary court judges against arbitrary dismissal or transfer. Too much discretion on the matters of appointments, promotions and dismissal was left to the discretion of the Supreme Judicial Council, even if dismissals required authorisation by the cabinet.
Despite these many criticisms, Abdallah Hussein acknowledged that upon reading the statutes he "detected a spirit favourable to the promotion of the autonomy of the judiciary".
His optimism was not misplaced. As Latifa Mohamed Salem wrote in the second volume of her encyclopaedic T he Modern Egyptian Judicial System: 1914-1952, these statutes were the first positive legislative response to the many complaints that had been levelled against the minister of justice's power over judicial appointments, promotions and dismissals.
It is noteworthy that these acts of law were promulgated during that pivotal period of the first Ali Maher cabinet. Although this government lasted less than four months (30 January to 9 May 1936), it was pivotal for a number of reasons. It followed closely on the heels of the Sidqi era, named after the notorious Prime Minister Ismail Sidqi who upon assuming power in 1930 abrogated the 1923 Constitution and launched a massive suppression of civil liberties. One of his main instruments for consolidating his power was the courts, which he pressed into issuing harsh sentences against his adversaries. As he simultaneously occupied the post of minister of justice during much of his tenure, he wielded an axe over the heads of judges, as he had the power to pack the courts with those who supported him or to transfer those who refused to do his bidding to remote provincial courts. Al-Ahram later regretted that it did not have the time to investigate the many grievances that had been lodged during this period. Our belief is that the newspaper would have risked closure had it undertaken such a worthy initiative under the Sidqi government's repressive rule.
The Ali Maher government was pivotal because it had been expressly brought in to hold elections under the newly restored 1923 Constitution. Everyone knew that the elections would bring an overwhelming Wafd Party victory and many feared that, once in power, the party would take revenge by purging the judiciary of pro-Sidqi judges. It was against this backdrop that one first heard the appeal for "immunity of the judiciary", which soon evolved to the demand for the "autonomy of the judiciary".
The Ali Maher government was also unique in that it succeeded in persuading all contending parties in the Egyptian political arena of its scrupulous neutrality. This, combined with the fact that King Fouad had died during this interval (28 April 1936), put this albeit short-lived government in a strong position to leave its mark on Egypt's history.
Judicial reform was in the air before the creation of the Ali Maher cabinet. As early as 25 October 1935 Al-Ahram inaugurated a campaign towards this end under the headline "Judicial reform: selection and immunity." The article's author, Abdel-Halim El-Bili, opens with a quote from Mohamed Abduh 30 years earlier. The famous Islamic reformer had once served as a judge on the National Court of Appeals. When asked why this court had the people's confidence whereas the preliminary courts did not, he attributed this general opinion to a single cause. "The justices on the Court of Appeals cannot be dismissed, so no one can influence their opinion. The judges in the preliminary courts, on the other hand, are vulnerable to dismal and can therefore be heavily influenced." Although this shortcoming had become common knowledge, no minister had ever ventured to remedy it, for the simple reason, in El-Bili's opinion, that no minister wanted to deprive himself of the power he held over the judges to dismiss or transfer.
El-Bili's article opened the floodgates of responses to his article and further commentaries on the subject of judicial reform. Most of the contributors were judges who preferred not to reveal their identities. One signed himself as "His Honour", another as "Justinian", a third as "Judge Y" and a fourth as "an eminent member of the standing judiciary" from which one deduces that he was in fact a prominent lawyer.
The article of the first of these, "Reform of the judiciary", took up two full columns of the front page, the whole of page 2 and another chunk of page 15 of Al-Ahram 's edition of 9 November 1935. "His Honour" urged legislators to contemplate the institution of a system that would strike a fair balance between the need to give judges a sense of security in their positions and the need to address the fears of those opposed to the theory of immunising judges against dismissal. The essence of the solution he proposed was a mechanism, overseen by the Court of Cassations, whereby judges could be debarred for a maximum of a ten year period and only for explicit causes, such as negligence, ineptitude or other demonstrable deficiencies in their qualifications.
His second point was directly related to the first. Recent governments had been excessive in their recourse to transfer. "Transfer has no less profound a psychological effect on a judge than dismissal, for the judge will inevitably interpret this action as a form of punishment. What is worse is the pernicious effect this has on the performance of his duties. A judge who has been dismissed no longer arbitrates in people's affairs so the harm done is restricted to him alone. The transferred judge does continue to arbitrate and if he does not raise himself to the level of dispassionate impartiality it is far from likely that his personal feelings of injustice will not affect his judgement."
The question of promotions was far more intricate, especially in view of the fact that justice ministries over previous periods had relied on different criteria for this purpose. Under one ministry, promotions were based on seniority, under others a combination of seniority and qualifications. He further alluded to the irregularities involved in the process when he added, "This is to exclude other factors which, as everyone knows, were the decisive factors in some promotions but which should not be considered in the formulation of a theory on this subject."
The advantage of seniority as a criterion was that no one could dispute it, opined "His Honour". "A glance at the judge's registrar in the Ministry of Justice is sufficient to settle all doubts." Competence, on the other hand, was "more difficult to grasp" and required a more precise definition. Until the present, Ministry of Justice officials equated competence with renown. However, "such a reputation could be the product of a false image a candidate creates for himself, whereas in fact many might be more qualified than he." In his opinion, the Court of Cassations should be placed in charge of promotions, "which are awarded on the basis of competence as demonstrated by legal and juristic studies the judges publish".
"Justinian", who borrowed his pseudonym from the Roman Emperor famed for his lawmaking, contributed two articles which appeared beneath the headline: "The Judiciary: its sanctity resides in dignity". In his discussion of judicial autonomy, he raises the question of the "Hoar declaration", so named after the British Foreign Office official who stated his opposition to the restoration of the 1923 Constitution, and which triggered the massive student uprising in 1935. National and Mixed Court judges participated in the strike which "Justinian" maintained was legitimate. "Voicing protest on vital national matters is a duty that must not be shunned," he wrote, adding that this cannot be perceived as an intervention by the judiciary in politics. He goes on to note that preliminary court judges did not participate in this strike. The reason: they did not have the immunity to dismissal that higher court judges had. He concludes with a plea to confer this privilege on the preliminary court judges so that they too can express their convictions freely.
Perhaps more important was the series of articles on judicial reform by "Judge Y" because they covered the most important aspects of the issue. Firstly, he believed that the recent amalgamation of the judicial and prosecution streams created an unnecessary confusion that was unfair to all concerned. Whereas in the past, the public prosecutors office supplied many worthy judges, "we now find that a judge at second-grade can be promoted to deputy prosecutor first- grade, return to the courts as judge first-grade, then step up to the position of chief prosecutor, come back to the courts as deputy justice, return again to the prosecution as chief prosecutor first-grade, and so on and so forth."
On the controversy of promotion on the basis of seniority versus competence, "Judge Y" felt that judges should be rewarded for their excellence but that adhering to the principle of seniority at the same time would not be unfair. He was of the opinion that a higher body of justices should be formed to review cases of promotions not based on seniority. The Minister of Justice could then submit to this body a request of the promotion of a particular candidate, outlining the reasons why he should be exempted from the ordinary conditions. "Such a system would put an end to favouritism and ensure that the man promoted is respected by his colleagues, not the subject of their gossip."
"Judge Y" also discussed the question of transferring judges to other government position which, he maintained, was a form of encroachment upon judicial autonomy. This applied even if the transfers took place in accordance with the wishes of the individual transfer which, he admitted, was generally the case. He suggested that if this practice cannot be abolished entirely, on the grounds that other government departments are in need of the expertise that judges offer, then at least the law should state that if a judge is transferred back to the judiciary then he should return at the same rank, level of seniority and pay scale as when he left.
As a lawyer, the "eminent member of the standing judiciary", who signed himself MA, wrote from a different perspective from his judicial colleagues. His article, essentially, was a plea for an urgent remedy to certain phenomena that would keep judges away from temptation and corruption. What was important was to create the conditions whereby a judge could be certain that if he performed his duties to the best of his ability he would be an additional adornment to the prestige, dignity and integrity of the court. Simultaneously, he would also be assured that "the doors would be open to the rarefied air of the higher pinnacles of judicial structure". Because of his acquaintances and experience among the young judicial community, he was in a position to say that many of these were highly suited to carry the banner of the judicial mission in Egypt. "They are no less erudite, knowledgeable in their fields of expertise, and sound of judgement and logic than their counterparts in any other country."
The political party press also joined in the campaign for judicial reform. Al-Siyasa, the mouthpiece of the Liberal Constitutionalist Party, echoed the opinions of MA, saying that the judicial system in Egypt lagged far behind the professional achievements of Egyptian judges and their moral and intellectual calibre. It was the latter qualities, moreover, that gave them a "natural immunity to corruption to which they might otherwise be tempted by circumstance or by the shortcomings in an obsolete system". The newspaper adds, "This system must be changed. We need a new, modern system worthy of those judges who were the asylum to which the people of this nation sought refuge in their time of need."
In promulgating the law outlined at the beginning of this article the Ali Maher government was clearly responding to a deeply felt public demand. However, as the commentary of Al-Ahram staff writer Abdallah Hussein suggests, the law was not received with unqualified enthusiasm.
Under the headline "The observations of a judge" a National Court justice offers his expert opinion on the new law. On the plus side, Article 15 stipulated that judges could not be dismissed without the authority of the Supreme Judicial Council. This, he wrote, was "a wish long espoused by reformers and finally made true by the current government". On the negative side, the new law gave the government a freer hand with regard to promotions and transfers, as was epitomised by Article 14 in accordance with which the government could override the decisions of the Supreme Judicial Council on the basis of a report submitted to it by the minister of justice.
Another flaw in the new law, in the National Court judge's opinion, was that it failed to specify the procedures for presenting promotions or transfers to the Supreme Judicial Council. "Will the council be restricted to reviewing only the cases brought before it by the minister of justice?" he asks. By way of example, he cites a hypothetical situation in which the minister of justice asks for the promotion of a group of judges but the judicial council is of the opinion that even if these candidates are qualified for promotion there are others who are equally qualified but with higher seniority. On the basis of the confusion and ill feeling that could arise from such a situation, the judge states, "Justice dictates that the council alone has the right to select candidates for promotion on the basis of seniority."
Finally, the judge questions competence as the basis for promotion. This would require the Ministry of Justice to diversify the types of positions judges hold, for "how can one assess the competency of a member of a tribunal that issues its verdicts by majority after having reached those verdicts in secret deliberations, especially given that if that tribunal's verdict is mistaken the consequences of this error must be borne by all its members?"
MA, the standing judge, makes another appearance on Al-Ahram 's pages to offer his opinion on the "Maher project". MA was unreserved in his praise. The new law did great credit to Ali Maher, he wrote. The members of the judiciary welcomed it enthusiastically because it was "the first document to have brought an end to the immobility and frustration that the seniority system had produced in the judicial career". The new law was "a powerful and unequivocal declaration that competence will be the only criterion for promotion... The only people who will fight the principle of competence are those who are content to let time take them up the ladder of promotion, without having to undergo the strain of keeping up to date with their profession or with those cultural developments that affect their profession."
MA also commended the new law for having placed the matter of promotions in the "wise and capable hands of the pillars of the judiciary. By virtue of their association with the members of the judiciary, they are in a better position to assess their character because of their personal contact with them, their performance and because they have the know- how to assess their rulings and scholastic work.
In sum, the "standing judge" concludes, the law was "a bold step forward in the cause of Egyptian judicial reform, the harbinger of a new and happier age for the judiciary, the foundation upon which can be built a single solid structure for justice served by men of established skill and expertise."
Not long after the promulgation of this law, the Ali Maher government completed the primary task for which it had been created and then stepped down to let the newly elected Wafd Party government take its place. What concerned those about judicial reform feared most at this point was that political party whims would once again meddle in the affairs of the judiciary. However, after the parliament's finance committee sent its report to the Ministry of Justice, peoples' fears were allayed. The report stressed the high value the committee attached to separation of powers and the principle of judicial autonomy.
"It is the greatest thing we must aspire to achieve, for if the judiciary loses its autonomy it loses its greatest advantage and most effective weapon, and becomes vulnerable to the sway and influence of the executive authority." Although the report praised the new law as "a great and encouraging first step" it offered a number of recommendations for "completing the autonomy of the court and blocking the windows through which the executive can peer into its affairs".
The parliamentary committee showed particular concern for the problems of preliminary court judges, "the soldiers at the front lines of justice". It urged the Ministry of Justice to take the necessary measures to advance their welfare and prevent discrimination, such as eliminating the two-grade ranking for preliminary court judges, assuring them permanent tenure after eight years of service and introducing a more consistent and equitable set of regulations regarding transfer.
If, with this, Al-Ahram closed its coverage of "the battle over judicial autonomy", this does not mean that the battle ended there. In June 1938, it would resume with Ahmed Khashaba's new project for the "reform of the judiciary", which Latifa Salem treats at length in her encyclopaedia of the Egyptian judicial system.